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JOAN VENNOCHI

SJC treads carefully

THOSE ACTIVIST judges of Massachusetts are becoming much less activist.

The Massachusetts Supreme Judicial Court shook the country with a landmark decision that established a constitutional right to same-sex, civil marriage. The 4-to-3 holding of Goodridge v. Department of Public Health, implemented in May 2004, made the SJC synonymous with liberal activism. Massachusetts judges, especially Chief Justice Margaret H. Marshall, were pilloried by social conservatives, starting with the president of the United States.

But, since Goodridge, something happened: When it comes to same-sex marriage, the Bay State's highest court has been in decorous retreat. In March, the SJC ruled that a 1913 law can be used to bar same-sex couples who live in other states from marrying in Massachusetts. And this month, the justices unanimously validated a proposed constitutional amendment that seeks to outlaw same-sex marriage via a 2008 ballot measure. In both cases, the justices tread very carefully to make sure they could not be vilified again for usurping the role of the Legislature or the people.

The 1913 law prohibits Massachusetts from marrying an out-of-state couple if the marriage would not be legal in their home state. The lead opinion in the case upholding this long-forgotten statute defers to the right of the Massachusetts Legislature to produce such a law and to the rights of other state legislatures to determine who can marry. In a scathing but lonely dissent, Justice Roderick L. Ireland said the state had resurrected a ``moribund statute" to subvert Goodridge and allow discrimination.

Next, in validating the constitutional amendment to outlaw same-sex marriage, the SJC parsed the meaning of ``reverse" as finely as Bill Clinton tried to parse the meaning of ``is." The decision in this case turned on a provision in the state constitution prohibiting any amendment that seeks the ``reversal of a judicial decision." The SJC justices said that in the past, ``reversal" was interpreted to mean the overturning of a specific case. The proposed amendment, they wrote, would not reverse the Goodridge decision; it would merely enact a new law prohibiting same-sex marriage.

Critics might call that a distinction without a difference. If Massachusetts votes to amend the Massachusetts Constitution to ban gay marriage, that decision would directly conflict with the fundamental principle of the Goodridge ruling -- that equal rights under the law mean homosexuals have an equal right to marry in Massachusetts. The conflict sets up a future round of legal battles, as noted by Justice John M. Greaney in his concurring opinion.

But, just like Scarlett O'Hara, the SJC now prefers to think about that tomorrow.

The SJC is showing deference in matters beyond gay marriage. In February 2005, the justices ruled, 5 to 2, against families seeking a major increase in state funding for school districts in poor communities. The plaintiffs in Hancock v. Commissioner of Education argued that poor school districts fare worse than affluent ones by various criteria, including quality of libraries, the number of computers in classes, and early-childhood education programs. To even the playing field, more money for the have-nots was critical, the plaintiffs said. So much for a liberal social agenda; in Hancock, the majority chose to withhold the stick of court intervention. The majority opinion, written by Marshall, settled for ``a steady trajectory of progress." It bowed, instead, to the good intentions of the legislative and executive branches. In doing so, the SJC put judicial activism, not to mention school parity, on hold.

Why the change of legal heart?

Perhaps the 4-to-3 split in Goodridge explains it. A bare majority of the SJC backed what amounted to a cultural earthquake. The aftershocks may have strengthened the internal hand of dissenting justices. Justice Francis X. Spina, who dissented in Goodridge, wrote the lead opinion upholding the 1913 law; Justice Robert J. Cordy, another Goodridge dissenter, wrote the lead opinion validating the constitutional amendment banning same-sex marriage.

In June, President Bush again invoked the Massachusetts Supreme Judicial Court when he called on Congress to approve a constitutional amendment banning same-sex marriage. Without it, he said, states across the country might have to recognize marriage ``as redefined by judges in, say, Massachusetts." This month, New York's highest court voted 4 to 2 that a legislative ban on same-sex marriage did not violate its state constitution.

It's lonely out there -- perhaps lonely enough to chill the heart and will of four activist judges who made brave, but controversial, history in Massachusetts.

Joan Vennochi's e-mail address is vennochi@globe.com.

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